My ex-partner won’t return my child, what can I do?
Where parents share parental responsibility for a child, and there is no order in place stating where the child lives and what time the child spends with the non-resident parent, it can sometimes occur that the ‘non-resident parent’ takes steps to keep the child in their care, against the wishes of the resident parent. This can be a very upsetting and an anxious time.
If your child has been retained/withheld from you, and there is no order in place, you can apply to the Court for a Child Arrangements Order and, if necessary, a Prohibited Steps Order. Depending on the circumstances, it may be possible for this application to be brought before the court urgently, sometimes within a few hours. A Child Arrangements Order is an order stating where the child lives and when your child spends time with each parent; it can also regulate other forms of contact such as telephone calls. A Prohibited Steps Order is an order which prohibits a certain act, for example, it may prohibit a party collecting a child from school or removing a child from the care of the other parent outside of agreed/ordered times. Below is a table with a non-exhaustive list of the purpose a Child Arrangement Order and Prohibited Steps Order can serve. Once an application to the Court has been made, the Court will list a hearing and will also notify the Children and Family Court Advisory Support Service (Cafcass) of the application. Cafcass are an impartial body, in place to assist the Court in making a safe decision that is in the best interests of the child. It is usual for Cafcass to contact you ahead of the hearing to establish each parent’s respective position and identify any welfare concerns in respect of the child.
At the hearing the Court will navigate the issues so it is clear what parties agree on, what they disagree on and any risk posed to the child. If agreement cannot be reached at the first hearing the Judge will make directions as to the timetabling of the proceedings continuing. The Judge has a range of powers and options open to him/her so as to ensure all the relevant information/evidence is before the Court enabling it to make a safe decision. The Court may, for example, order Cafcass to write a report which will make recommendations as to where the child should live or what contact the child should have with the non-resident parent. It is open to parties to reach agreement and invite the Court to make an order by consent, however in order for this to occur, the Court must be satisfied that the agreement reached is safe and in the best interests of the child. If parties cannot reach an agreement, then once all the necessary information/evidence has been gathered, the Court will list a final hearing and the Judge will make a final order, based on the best interests and welfare of the child.
The Court always parties to reach an agreement concerning children wherever possible. Agreement promotes positive communication between the parties and can avoid the harsh feeling of having a decision imposed. Whilst it is beneficial for all parties involved, particularly the child, for parties to agree, sadly it is not always possible. In any event, before you are allowed make an application to the Court you may need to demonstrate that you have taken appropriate steps to resolve issues between you. In most circumstances, the Court requires the person making an application to attend a Mediation Information Assessment Meeting (MIAM) to assess whether or not mediation is appropriate to resolve the issues. Mediation is a cost-effective way of resolving issues by promoting positive communication between the parties. If mediation is successful, it negates the need for a Court application. In some circumstances, Mediation is not appropriate, for example where there has been domestic violence. You may still need to attend the MIAM, depending on the circumstances.
In some circumstances the order sought is urgent and a MIAM is not necessary. It would be advisable to discuss your situation with a family lawyer if you consider the matter to be urgent.
It is important to seek legal advice at the early stages of a dispute, whether you feel it is urgent or not, so you have clear and informed view of the options open to you and the appropriate course of action to take. Here at Nash and Co we offer expert, jargon-free legal advice from experienced family lawyers who are all members of Resolution. As such, we are committed to resolving issues in a non-confrontational manner and will ensure your matter is dealt with swiftly and as cost effectively as possible.
Kirstin Sibley is a Solicitor in the Family Law team at Nash & Co Solicitors in Plymouth. She is a member of Resolution and deals with all areas of family law. She advises on a wide range of matters including divorce, financial relief, children and cohabitee disputes.
Tel 01752 827038
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